The following provides a summary of Jo Millington's article for Expert Witness, April 2017.
Forensic Science is the application of scientific methods and techniques to matters under investigation by a court of law and there is absolutely no difference in the way in which forensic science is commissioned on behalf of the Crown to that which is commissioned by the defence. In either case, forensic scientists must work in accordance with the overriding objective, which includes a responsibility to deal with a case efficiently and expeditiously.
In the current forensic marketplace, forensic science instructed on behalf of any party is becoming increasingly limited because of budget and it is time to ask if the requirement to deliver cases at a proportionate cost has become the overriding objective in forensic investigation.
Our view is that the appetite to reduce spend is leading to spiralling inefficiencies and tests are being commissioned simply on the basis of price rather than on whether they can provide answers to the questions that are most relevant to the court. Principally these questions focus on the defendant and require an evaluation of the scientific results in the context of the allegation, the defendant’s account and the case circumstances.
It is also our experience that questions regarding the science are being posed too late in an investigation: often as the case approaches trial and sometimes are directed solely at those instructed on behalf of the defence. These questions may relate to complex interpretational issues, such as the significance of the raw scientific data in case framework, and often re-analysis of a sample or re-evaluation of the data generated during the original investigation is necessary in order to address the core issues robustly.
The requirement for cost efficiencies in forensic science is not restricted to the Crown, and anyone operating within the framework of the Legal Aid Agency (LAA) will appreciate that there is a growing pressure to reduce cost. This manifests itself in a number of ways, but it can mean that the work that is required (in order to answer the questions posed by the court) simply cannot be done - because the application for funding is denied, because there is insufficient time to do the work properly or because the data is incomplete. In any event the impact on the criminal justice process should not be underestimated.
The impact of financial challenges on forensic provision in the UK is not a new topic and was recently discussed by the Forensic Science Regulator in her Annual Report: [https://www.gov.uk/government/publications/forensic-science-regulator-annual-report-2016]. Although the onset of these challenges is often attributed to the closure of the national Forensic Science Service in 2012, in reality their foundations pre-date this.
Irrespective of the catalyst, the enduring fact is that good, high quality forensic science can be delivered across a range of budgets if fair and appropriate resources are made available and the following conditions are met:
1. That the underpinning forensic strategy is relevant and robust. This is optimised when multi-disciplinary expertise is employed as the collective opinion of scientists and practitioners with a broad range of knowledge can provide a comprehensive and contextual view of forensic opportunities.
2. That all outcomes are subject to a process of quality assurance. This may be delivered against a framework of formal accreditation, such as ISO/IEC 17025, but must include a number of minimum quality requirements regarding, for example, peer review and checks that are commensurate with the risk profile of the test.
The delivery of forensic science in accordance with published standards is a minimum requirement and there is certainly an expectation that scientific results that are relied upon by the court are compliant. However, the costs associated with the delivery of an ‘accredited process’ are widely misunderstood. This is regrettable because the costs are not insignificant and ultimately they have a significant impact on the overall cost of the service.
The cost of forensic testing is most commonly expressed as an hourly rate. In most cases this is a requirement of the LAA and it has been forced elsewhere through the process of commercialisation. It is typically based on a derivation of costs associated with the test itself - consumables and equipment for example, the practitioner and/or skill level and a proportion of other costs extrapolated from overheads such as accreditation, service delivery and professional development. The resultant rate is often then measured in an apparently arbitrary framework where allowable costs have been capped, because of market or other non-disclosed forces, at a rate that is invariably lower than the actual cost of service.
Of course the landscape is further skewed if the Forensic Science Provider artificially reduces their rate in order to be cost-competitive, in which case they will invariably operate at a loss; or if the decision is made to operate in a non-accredited framework, which can reduce cost but undermine quality. We believe that it is time to level the playing field and formally investigate if the actual cost of forensic provision within an accredited quality framework can be achieved in the current market and within the budget available. There is a mounting body of evidence to suggest that it cannot.
The continuing commercialisation of forensic science in the UK places forensic science and those that practice it in an untenable position and if it is to continue an alternative approach will be necessary. A leaner approach could include the development of a forensic strategy that satisfies the requirements of the Crown and the Defence at the outset of an investigation, although it is probably more realistic to imagine that this could happen when an investigation starts to focus on a possible suspect. A more achievable objective might be to ask that all users of forensic science challenge whether the test that is being considered is fit for purpose – has it been selected because it is cheap or has it been selected because it is best placed to answer the relevant question?
Take DNA as an example. DNA tests are very good at establishing a link between an item and a possible source. However, increasingly the source of the DNA is not challenged but rather the mechanism by which it got there. As well as a shift change in the types of questions that are being asked of DNA evidence, the associated technology continues to develop and so too our ability to generate DNA profiles from ever decreasing quantities of trace material. The reliable evaluation of the transfer and persistence of DNA is a hot topic and the complexity of the issue, in terms of underpinning research and interpretation of the data, should not be underestimated.
There is an urgent requirement for strategic operationally relevant research to be performed in this area by institutions that are more fragmented and under more commercial pressure than ever before. And the evaluation of forensic DNA evidence is the tip of the iceberg; it sits alongside a burning demand for the collaborative development of standards in many other forensic areas: digital evidence, marks and traces, bloodstain pattern analysis to name a few. It is not difficult to see where the vulnerabilities lie.
Of course, despite the financial challenges, the prospect of a quality failure in forensic science is a truly frightening thing and steps are taken at every opportunity to eliminate the possibility. Risk profiling and the mitigation of risk are an integral part of the forensic process and when quality failures occur, procedures are in place to scrutinise and learn from them. But in order to reinstate and maintain a balance in forensic science provision in the UK, fair and proportionate resources must be made available to those operating across all facets of the Criminal Justice System. Forensic Science Providers must be able to operate a system in which quality is not undermined because it is simply unacceptable to think that the quality of forensic science in the UK is being compromised because of budgetary limitations – isn’t it?